Amicus Curiae Brief — Johnson v. Texas

ee ee OE PO eS pe ee eT ee

POTION FILED D\

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

\

DORSIE LEE JOHNSON,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

On Writ of Certiorari to the

Court of Criminal Appeals of Texas

MOTION FOR LEAVE TO FILE AND

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street (95816)

Post Office Box 1199

Sacramento, CA 95812

Telephone: (916) 446-0345

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

"BEST AVAILABLE COPY’

QUESTIONS PRESENTED

1. Did Jurek v. Texas approve the Texas capital

sentencing system of considering youth as mitigating only

as it bears on future dangerousness?

2. If so, should Jurek be overruled?

(1)

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

DORSIE LEE JOHNSON,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

MOTION OF AMICUS CURIAE FOR LEAVE TO FILE

BRIEF IN SUPPORT OF RESPONDENT

Pursuant to Supreme Court Rule 37.3, the Criminal

Justice Legal Foundation respectfully moves for leave to

file the accompanying brief amicus curiae in support of

respondent in the above captioned case. Counsel for

respondent has consented, but counsel for petitioner has

refused consent.

In the accompanying brief, amicus argues that Jurek v.

Texas is dispositive of this case unless overruled, and that

Jurek ought not be overruled.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a

nonprofit California corporation organized to participate

in litigation relating to the criminal justice system as it

affects the public interest. CJLF seeks to bring the due

process protection of the accused into balance with the

rights of the victim and of society to rapid, efficient and

reliable determination of guilt and swift execution of

punishment.

Capital punishment has three functions: incapacita-

tion, deterrence, and retribution. It cannot perform these

functions if this Court constantly changes the rules,

striking down systems it has previously upheld. Such

undermining of the interests of victims of crime is con-

trary to the rights CJLF was formed to protect.

For the foregoing reasons, amicus curiae requests leave

to file its brief.

April, 1993

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

TABLE OF CONTENTS

a ede cauuccladdadouecdudiecs i

I odo davucsecunddcucdtoceeia ili

ii cba vedenescacdsedeauans vii

en coca deccedeseeedetionanuce 1

Summary of facts andcase ....................... 1

i evedcnveetwbecacubabeces 3

PST EGS eG CUR Cbdeddcndcucnsdddcnsedééus 3

I

Jurek cannot be reconciled with the requirement

defendant seeks to impose ...................... 4

II

Jurek has not been overruled to date ............... 8

A. Lockett and its progeny ................... 8

ee ere oct eceeda cul 10

C. Parks and Graham ...................... 12

Ill

For the reasons stated in Casey, Jurek should

ices cunencudeteuscsuesecnsane 15

A. Normal stare decisis analysis ............. 15

pI Sahar Ge ied oe 15

eer TE PPR mime 16

3. Development of the law ............... 17

Pe EE nccivedcedcccddcsasntes 17

vi

B. National controversies ............-.++5+: 18

1. Public confidence ...........-----+45- 19

2. Promise of constancy ........-..--++-- 20

IV

Penry should remain limited to its narrow

interpretation .......-. 6.6.6 eee e esse eee renee 22

. c cc cc ccccccccccccocecececccesecess 23

vii

TABLE OF AUTHORITIES

Cases

Ake v. Oklahoma, 470 U. S. 68, 84 L. Ed. 2d 53,

TTT TTT TTT TTT TTT 16

Broadrick v. Oklahoma, 413 U. S. 601, 37 L. Ed. 2d 830,

kein vencgecanstesseuisues 6

Brockett v. Spokane Arcades, Inc., 472 U. S. 491,

86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985) ........... 6

Eddings v. Oklahoma, 455 U. S. 104, 71 L. Ed. 2d 1,

EEE cc cncsccnsescancenesesees 10

Franklin v. Lynaugh, 487 U. S. 164, 101 L. Ed. 2d 155,

EE eo vaccsccccescocsesess 12, 16

Furman v. Georgia, 408 U. S. 238, 33 L. Ed. 2d 346,

EE cccccecedavedceceseens 19, 20

Graham v. Collins, 122 L. Ed. 2d 260,

SPEED oocccccecccecse 12, 13, 14, 17, 22

Gregg v. Georgia, 428 U. S. 153, 49 L. Ed. 2d 859,

ED kivcctovcuaueeevcesesscess 7,8

Griffith v. Kentucky, 479 U. S. 314, 93 L. Ed. 2d 649,

en ne belenedwccebeee ne see es 17

Hitchcock v. Dugger, 481 U. S. 393, 95 L. Ed. 2d 347,

Co Ee eee 10, 17

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

EE sess epbindecdesepeaseewe 16

Johnson v. State, 773 S. W. 2d 322

PE ME EEUEED cccccacesccesccccccoes 1,2

Jurek v. State, 522 S. W. 2d 934 (1975) ............. 4

Jurek v. Texas, 428 U. S. 262, 49 L. Ed. 2d 929,

Pe ED sc6sebdsddccontenvends Passim

vill

Lockett v. Ohio, 438 U. S. 586, 57 L. Ed. 2d 973,

Se GL EE oc cacececceveseneces 9, 10, 19

Marbury v. Madison, 1 Cranch (5 U. S.) 137,

Bi GPE ccccccccccesscosesccsecesecs 5

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

SPITE wvccceccccccsecccccecccces 16

McGautha v. California, 402 U. S. 183, 28 L. Ed. 2d 711,

SP SUEFED cc vcccscceccoscesescscces 19

New York v. Ferber, 458 U. S. 747, 73 L. Ed. 2d 1113,

SEED Sc ed cecenscnccccscccceees 6

Payne v. Tennessee, 115 L. Ed. 2d 720,

CEE konccecconcscseverveses 5, 16

Pennsylvania v. Bruder, 488 U. S. 9, 102 L. Ed. 2d 172,

Pe PEED Sc ccnccccccccdtesesecscees 8

Penry v. Lynaugh, 492 U. S. 302, 106 L. Ed. 2d 256,

109 S. Ct. 2934 (1989) ......... 2, 5, 11, 12, 13, 17, 22

Planned Parenthood v. Casey, 120 L. Ed. 2d 674,

112 S. Ct. 2791 (1992) ........ 8, 14, 15, 17, 19, 21, 22

Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158,

PE ED Bcc vecdoscecensscnaccescces 16

Proffitt v. Florida, 428 U. S. 242, 49 L. Ed. 2d 913,

PRED Sc cecdctesiccenencsnsesoes 8

Roberts v. Louisiana, 428 U. S. 325, 49 L. Ed. 2d 974,

PEED cocci evecccdsenecccesene 5,9

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

PP UE boseccecsccccterscess 12, 13

Schall v. Martin, 467 U. S. 253, 81 L. Ed. 2d 207,

IED Docdcececevcescbsecccsceces 6

Skipper v. South Carolina, 476 U. S. 1, 90 L. Ed. 2d 1,

EE odo daccvesanecssccescses 10

Smith v. Murray, 477 U. S. 527, 91 L. Ed. 2d 434,

ED oo cote acct diwenedeced: 20

United States v. Raines, 362 U. S. 17, 4 L. Ed. 2d 524,

EET be cncsetccksccceccescnee Shae

United States v. Salerno, 481 U. S. 739, 95 L. Ed. 2d 697.

oe ee B® Pee 6

Walton v. Arizona, 497 U. S. 639, 111 L. Ed. 2d S11.

SN ED Soc cccccedseeccccccs: 19

Woodson v. North Carolina, 428 U. S. 280,

49 L. Ed. 2d 944, 96 S. Ct. 2978 (1976) ........ g

Statute

3A Tex. Code Crim. Proc. Ann., Art. 37.071(2)(e)

PONE SEED wc cecccscucnsccessesss 21

Treatise

R. Rotunda & J. Nowak, Treatise on Constitutiona! Law

EER Se eh ee 5

Miscellaneous

U. S. Bureau of Justice Statistics, Capital Punishment

ee 16

U. S. Bureau of Justice Statistics, Sourcebook of

Criminal Justice Statistics—1991 (1992) ....... 19

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

DORSIE LEE JOHNSON,

Petitioner,

vs.

THE STATE OF TEXAS,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

SUMMARY OF FACTS AND CASE

On March 23, 1986, defendant petitioner Dorsie

Johnson and his accomplice Amanda Miles decided to rob

Allsup’s convenience store in Snyder, Texas. They

decided in advance that they would murder any witnesses.

Johnson ordered the clerk, Jack Huddleston, to lie on the

floor. Johnson then shot Huddleston in the back of the

neck, killing him. The robbery netted $160 and two

cartons of cigarettes. Johnson v. State, 773 S. W. 2d 322,

324 (Tex. Crim. App. 1989).

Johnson subsequently robbed another store. Johnson

shot the store owner in the face, and his accomplice

stabbed the owner in the back. Fortunately, they did not

succeed in killing him. Pet. Brief 6-7. Following his

arrest for the second robbery and attempted murder,

Johnson confessed to the murder of Jack Huddleston.

773 S. W. 2d, at 324.

In the penalty phase, the principal defense witness was

defendant's father, Dorsie Johnson, Sr. Mr. Johnson

emphasized his son’s youth, 19 at the time of the crime,

and involvement with drugs. He tied his testimony

directly to the question of future dangerousness, empha-

sizing his son’s potential for rehabilitation. Pet. Brief 7-8.

The trial judge instructed the jury on the Texas

“special issues,” which ask the jury about the deliberate-

ness of the crime and the probability that the defendant

would be dangerous in the future. The judge also

modified the statutory instructions to explicitly tell the

jury to consider mitigating evidence in determining the

special issues. However, the court refused to instruct the

jury to consider mitigating evidence outside the frame-

work of the special issues. The jury answered the ques-

tions “yes,” and Johnson was accordingly sentenced to

death. Pet. Brief 10; App. Pet. Cert. B-1.

The Texas Court of Criminal Appeals affirmed on

June 21, 1989. 773 S. W. 2d, at 322. Five days later, this

Court decided Penry v. Lynaugh, 492 U. S. 302 (1989).

Johnson petitioned for rehearing based on Penry, contend-

ing insufficient consideration of his youth as a mitigating

factor. The state court denied rehearing in an unpub-

lished opinion. It held that the instructions in the case

permitted the jury “to express a reasoned moral response

to applicant’s youth.” App. Pet. Cert. B-3.

Johnson filed a petition for writ of certiorari in this

Court. The only question relating to the instruction of

the jury was this: “Did the Texas capital sentencing

statute unconstitutionally preclude the jury from giving

full mitigating effect to the petitioner’s youthful age at the

time of the offense?” Pet. Cert. i. The Court granted

certiorari limited to this question on February 19, 1993."

1. Defendant now appears to regret his own decision to limit consideration

to the question of age. See Pet. Brief 26, n. 14.

SUMMARY OF ARGUMENT

Jurek v. Texas controls this case. Jurek considered the

constitutionality of the Texas system as applied to the

facts in that case and found that the -special issues

provided constitutionally sufficient consideration of

Jurek’s mitigating evidence. The cases are factually

indistinguishable.

Jurek has not been overruled to date. Penry v.

Lynaugh created an exception for cases where important

mitigating evidence cannot be given any mitigating force

under the Texas special issues. While Penry might, on its

face, be read more broadly, any such interpretation is

precluded by Saffle v. Parks and Graham v. Collins.

For the reasons stated in Planned Parenthood v. Casey,

Jurek should not be overruled now. The Jurek rule is not

unworkable. ‘Texas has a massive reliance interest in

preserving judgments tried according to this Court's

determination of constitutionality. Jurek is not a remnant

of abandoned doctrine, and there are no changed facts

justifying its repudiation.

Capital punishment is an issue of great national

controversy. The people of America have already been

badly whipsawed on this issue. To strike down a sentenc-

ing system previously approved would do grave damage to

this Court as an institution and to the people’s faith in the

rule of law.

ARGUMENT

Petitioner Johnson contends that the Texas death

penalty statute upheld in Jurek v. Texas, 428 U.S. 262

(1976) is unconstitutional as applied to him. The reason,

he claims, is that even though the jury could have consid-

ered his youth in answering the “dangerousness” question,

the jury was not permitted to consider whatever mitigating

force his youth had beyond the scope of that question.

Given that Jurek upheld the sentencing system used in

this case, Johnson’s claim raises three questions. Can his

position be reconciled with Jurek? If not, has Jurek

already been overruled sub silento? If not, should Jurek

be overruled in this case? The answer to all three,

amicus submits, is no.

I. Jurek cannot be reconciled with the requirement

defendant seeks to impose.

Jurek v. Texas, 428 U. S. 262 (1976), the primary case

on the constitutionality of the Texas system, is conspicu-

ous by its absence from the defendant’s argument. His

brief makes only one passing reference to it. See Peti-

tioner’s Brief v, 17. There is a good reason for this

curious absence. Jurek is flatly contrary to defendant's

position.

Jurek, like Johnson, was young at the time of the

crime. He was 22. Jurek, 428 U. S., at 266. In consider-

ing Jurek’s case, the Texas Court of Criminal Appeals

held that age could be considered in mitigation in the

course of answering the second question. /d., at 272-273

(quoting Jurek v. State, 522 S. W. 2d 934, 939-940 (1975)).

This Court squarely and unmistakably held that this

consideration of Jurek’s proffered mitigation met the

requirements of the Eighth Amendment. The joint

opinion of Justices Stewart, Powell, and Stevens’ exam-

ined the very question at issue today and held that the

Texas procedure fulfilled the constitutional requirement

in that it “guides and focuses the jury’s objective consider-

ation of the particularized circumstances of the individual

offense and the individual offender... .” /d., at 274.

Though it is patently obvious that Jurek’s mitigating

evidence did have relevance beyond the statutory ques-

2. For brevity, we will refer to this opinion as the “lead opinion.”

tions, the Constitution did not require further instruction

in 1976.

Justice White’s concurring opinion, joined by Chief

Justice Burger and Justice Rehnquist, was even more

clearly in favor of validity, denying that there was any

requirement to consider mitigation at all. /d., at 279

(citing Roberts v. Louisiana, 428 U. S. 325, 348-350 (1976)

(dissent)). Justice Blackmun’s statement, by incorporating

his Furman dissent, similarly affirms that the judiciary has

no authority to create a mitigation requirement. 428

U. S., at 279. Thus, not only did Jurek expressly uphold

the procedure in question on indistinguishable facts, it did

so overwhelmingly. Cf. Payne v. Tennessee, 115 L. Ed. 2d

720, 737-738, 111 S. Ct. 2597, 2610-2611 (1991) (decision

by narrow margin).

Penry v. Lynaugh, 492 U. S. 302, 315 (1989) says that

Jurek dealt with “the facial validity of the Texas death

penalty statute.” Defendant gives this statement its most

extreme interpretation. He contends that Jurek stands for

nothing more than the proposition that the Texas system

does not produce an invalid sentence in every case. Pet.

Brief 17. Both the opinion itself and the normal function-

ing of the adjudication process contradict this narrow

reading.

Neither this Court nor any other federal court has the

authority to strike down a statute in the abstract. The

power of judicial review exists only as a component of the

power and the duty to decide cases. See Marbury v.

Madison, 1 Cranch (5 U. S.) 137, 177-178 (1803); United

States v. Raines, 362 U. S. 17, 20-21 (1960). Courts decide

cases on the facts presented by the cases, and a wide

variety of jurisdictional and prudential doctrines have

grown up to prevent the pronouncement of doctrine on

abstract questions not actually presented by the dispute

before the courts. See generally 1 R. Rotunda & J.

Nowak, Treatise on Constitutional Law § 2.13, at 161-242

(2d ed. 1992) (discussing “case or controversy,” advisory

opinions, mootness, ripeness, finality, and standing).

A “facial challenge” is a departure from the norm,

because it does not look to the facts of a concrete

dispute. Usually, this departure is made necessary by the

procedural posture of the case. When a class action is

brought, a facial challenge, if successful, will obtain relief

for the entire class without litigating each application.

See, e.g., Schall v. Martin, 467 U. S. 253, 268, n. 18 (1984).

An action for declaratory and injunctive relief brought by

persons who wish to engage in proscribed activity in the

future may be brought as a facial challenge, see, e.g,

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 494

(1985), because they do not wish their future freedom of

action to be limited to the facts presented in the action.

In the First Amendment area, one who seeks to invoke

the “overbreadth” doctrine necessarily makes a facial

challenge, since the challenger is taking advantage of a

special exception to the normal rules of standing, attack-

ing the statute as applied to others, even though it is

constitutional as applied to him. See New York v. Ferber,

458 U. S. 747, 768-769 (1982).

Outside the First Amendment area, criminal defen-

dants appealing their convictions and sentences very rarely

limit themselves to facial attacks, for good reason. “A

facial challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the chal-

lenger must establish that no set of circumstances exists

under which the Act would be valid.” United States v.

Salerno, 481 U. S. 739, 745 (1987) (emphasis added). In

Salerno, the preventive detention case, the trial court had

found that the defendant was the “boss” of a criminal

organization which routinely engaged in violence, includ-

ing murder. /d., at 743-744. It is inconceivable that if

preventive detention were permitted at all, it would not

be permitted in such a case. Salerno lost nothing by

foregoing the “as applied” challenge.

Defendant's reading of Jurek implies that Jurek’s

renowned counsel intentionally threw away the “as

applied” challenge even though his client's life literally

depended on it. To sustain defendant's position without

distinguishing or overruling Jurek, it would be necessary

to conclude that this Court affirmed Jurek’s sentence and

condemned him to death because the statute in question

might be constitutional as applied to other defendants even

though it contained a glaring constitutional defect as

applied to Jurek. The Jurek Court and counsel should not

be accused of perpetrating such a bizarre injustice without

exceptionally compelling evidence. In fact, the opinion

clearly states the exact opposite.

Jurek had filed a certiorari petition presenting two

questions. The first one was “Does the imposition and

carrying out of the sentence of death for the crime of

murder under the law of Texas violate the Eighth or

Fourteenth Amendment to the Constitution of the United

States?” The second question dealt with admissibility of

a confession. Petition for Writ of Certiorari in Jurek v.

Texas, No. 75-5394, at 2. This Court granted certiorari

limited to the first question. 423 U. S. 1082.

The question presented does not unambiguously limit

itself to a contention that the statute is unconstitutional

in all cases, and the Jurek lead opinion did not understand

the question to be so limited. Nowhere does the opinion

use the term “facial challenge.” The lead opinion de-

scribes in detail the facts of the individual case, which

would be irrelevant under defendant's interpretation.

Jurek, supra, 428 U.S., at 264-268. Most importantly,

however, the lead opinion very clearly states the question

before the Court. “We granted certiorari, 423 U. S. 1082,

to consider whether imposition of the death penalty in this

case violates the Eighth and Fourteenth Amend-

ments....” /d., at 268 (emphasis added). There is

similar language in the companion cases. See Gregg v.

Georgia, 428 U. S. 153, 162 (1976); Proffitt v. Florida, 428

U. S. 242, 247 (1976).

Jurek thus holds that the Texas death penalty statute

is constitutional as applied to Jurek, and not merely as it

might be applied to some future defendant. The very

essence of precedent is that a case must be decided the

same way as an earlier case with indistingwisaable facts,

unless that earlier case is overruled. See, e.g, Pennsylva-

nia v. Bruder, 488 U.S. 9, 11 (1988). Since defendant

does not and cannot distinguish Jurek, precedent requires

affirmance, unless Jurek is overruled.

Il. Jurek has not been overruled to date.

Gregg and its companion cases appeared to resolve two

of the most divisive legal issues of modern times: that

capital punishment is constitutional and that three of the

five sentencing systems considered were constitutional. In

light of the magnitude of these issues, one would expect

that this Court would consider them as finally resolved

and would not reopen them without a justification beyond

dispute. See Planned Parenthood v. Casey, 120 L. Ed. 2d

674, 707, 112 S. Ct. 2791, 2814 (1992). Tragically for the

law-abiding people of America, it was not to be.

A. Lockett and Its Progeny.

Along with the Texas system approved in Jurek, two

other capital sentencing systems were approved the same

day. “In Gregg v. Georgia, we today hold constitutionally

valid a capital-sentencing system that directs the jury to

consider any mitigating factors, and in Proffitt v. Florida

3. Gregg refers to a “limited grant of certiorari” in the context of discussing

the vagueness of aggravating circumstances which were not found in

Gregg’s case. 428 U.S., at 201, n. 51; id., at 161. This is entirely

different from ignoring a constitutional flaw in the case before the Court.

The analogous portion of Proffitt pays close attention to the facts of the

case. 428 U. S., at 255-256 and nn. 12-13.

we likewise hold constitutional a system that directs the

judge and advisory jury to consider certain enumerated

mitigating circumstances.” Jurek v. Texas, 428 U. S. 262,

271-272 (1976) (lead opinion) (emphasis added). Words

can hardly be more clear. The Florida system was valid

even though the sentencer was not told to consider any

circumstances other than those on the list. The Proffitt

lead opinion made clear that it understood the sentencer

was directed to consider only the “seven mitigating factors

{listed in the statute] to determine whether the death

penalty shall be imposed.” Proffitt v. Florida, 428 UV. S.

242, 251 (1976). Two mandatory sentencing systems were

struck down. Roberts v. Louisiana, 428 U. S. 325 (1976);

Woodson v. North Carolina, 428 U. S. 280 (1976).

In Lockett v. Ohio, 438 U. S. 586 (1978), the Court

was faced with an odd hybrid statute. A life sentence

could be imposed only if one of three seldom-occurring

mitigating circumstances was present: victim induced

murder, duress or strong provocation, or psychosis or

mental deficiency. /d., at 607. Thus, in the vast majority

of cases, a death sentence would be mandatory upon the

finding of an aggravating circumstance.

Because this system was mandatory in the vast majori-

ty of cases, it could have been struck down under the

principles of Roberts and Woodson. Instead, the Lockett

plurality chose to reach out and create a sweeping new

rule. It held that the sentencer “not be precluded from

considering as a mitigating factor, any aspect of a defend-

ant’s character or record and any of the circumstances of

the offense that the defendant proffers as a basis for a

sentence less than death.” /d., at 604 (emphasis in

original).

This rule would appear on its face to overrule Proffitt’s

holding that instruction of the jury on certain enumerated

circumstances was proper. However, Lockett muddied its

own waters by denying it overruled Proffitt, noting that the

statute in Florida did not specifically tell the sentencer to

10

ignore nonstatutory factors. /d., at 606, n. 15. The

crowning irony of Lockett is that this opaque opinion

declares, correctly, that “[t]he States now deserve the

clearest guidance that the Court can provide.” /d., at 602.

They did not receive it.

If Lockett did not overrule Proffitt, as it says it did not,

the two can be reconciled only by a narrow construction

of Lockett’s double negative “not be precluded.” These

words cannot mean that there is an affirmative require-

ment to instruct the jury to consider any and all proffered

mitigation, unless it overrules Proffitt’s validation of the

Florida instructions in that case. Perhaps Lockett only

meant that the sentencer cannot be expressly forbidden to

consider nonstatutory mitigation. The next two Lockett

cases were consistent with this narrow construction. In

Eddings v. Oklahoma, 455 U. S. 104, 109 (1982), the judge

believed he was legally precluded from considering

important mitigating evidence, and in Skipper v. South

Carolina, 476 U. S. 1, 3 (1986), the judge had excluded

the evidence altogether.

Only in Hitchcock v. Dugger, 481 U. S. 393 (1987) did

this Court make clear that it had indeed overruled Proffitt.

Hitchcock quoted disapprovingly the trial judge’s descrip-

tion of Florida sentencing law: “ ‘[T}his Court [the trial

court] is mandated to apply the facts to certain enumerated

“aggravating” and “mitigating” circumstances.’ 10 Record

195 (emphasis added).” /d., at 398. Hitchcock thus

emphasized and condemned as constitutional error the

trial judge’s use of precisely the same words which this

Court itself had used to describe the Florida system on

the day it upheld that system. See Jurek, supra, 428 U. S.,

at 272.

B. Penry v. Lynaugh.

Texas, however, still thought that it was safe. The

Texas statute never mentioned mitigating circumstances at

all; they were only implicit in the statutory questions.

Jurek had held quite clearly that this was constitutional.

In Penry v. Lynaugh, 492 U. S. 302 (1989), the majority

construed Jurek to have upheld the Texas statute “on the

basis of assurances that the special issues would be

interpreted broadly enough to enable sentencing juries to

consider all of the relevant mitigating evidence a defen-

dant might present.” /d., at 318 (emphasis added).

Unlike the Florida situation, this was at least a plausible

reading of Jurek, which had interpreted the state construc-

tion of the statute to include “whatever mitigating circum-

stances [defendant] may be able to show.” Jurek, supra,

428 U. S., at 272 (emphasis added).

In addition to the Lockett requirement that the

sentencer not be precluded from considering any evi-

dence, there is another, quite different, proposition

advanced in Penry. That is the notion that even if an item

of evidence is relevant to the statutory special issue, and

even if the sentencer can give effect to that item, the

sentencing system is nonetheless unconstitutional if the

item has additional mitigating force beyond its relevance

to the statutory issue. This would seem to be what the

majority means by “fully consider.” See Penry, 492 U. S.,

at 321. Unfortunately, these two very different proposi-

tions are so intertwined in the Penry opinion that it is

difficult to tell if the holding of the case is based on both

or just the first.

If Penry were writing on a clean slate, the most

plausible reading would be that it both reasserts the

Locket “all evidence” rule and creates a new “all possible

implications of all evidence” rule. Penry itself, however,

erects an impenetrable barrier to this interpretation. It

emphatically denies that it creates any new rules. See id.,

at 319.

On its facts, Penry fits within the Lockett rule. A

defendant whose moderate retardation did not prevent

him from deliberating and will make him a continuing

12

danger in the future has a powerful factor in mitigation

which cannot honestly justify a negative answer to either

of the special issues. See id., at 323. The result that the

Texas system may require additional instructions in a few,

rare cases can be consistent with a somewhat strained

interpretation of Jurek.

The more expansive interpretation, however, cannot be

reconciled with Jurek. The case in which the defendant

has no mitigating evidence with any relevance beyond the

special issues will be quite rare. Franklin v. Lynaugh, 487

U. S. 164, 185 (1988) (O’Connor, J., concurring in the

judgment) provides one example, but Jurek itself provides

the counter-example. Jurek’s youth, steady employment,

and contribution to his family’s welfare, 428 U. S., at 266-

267, indisputably had mitigating relevance beyond future

dangerousness, yet his sentence was affirmed. As noted

earlier, the Court granted certiorari in Jurek “to consider

whether the imposition of the death penalty in this case

violates the Eighth and Fourteenth Amendments... ,”

id., at 268 (emphasis added), and decided it did not. That

conclusion cannot be reconciled with the expansive

interpretation of Penry.

C. Parks and Graham.

In addition to Penry’s own holding that it did not

overrule Jurek, we have the further reassertion of Jurek in

Saffle v. Parks, 494 U.S. 484 (1990) and Graham v.

Collins, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993). In

Parks, the habeas petitioner’s contention was that an

instruction to the jury not to consider sympathy violates

the Eighth Amendment. 494 U. S., at 486. Rejecting the

argument that Lockett and Eddings dictated this result, the

Court said “Parks asks us to create a rule relating, not to

what mitigating evidence the jury must be permitted to

consider in making its sentencing decision, but to how it

must consider the mitigating evidence.” /d., at 490

(emphasis in original).

13

The distinction made by this passage is precisely the

distinction between the two threads in the Penry opinion

The requirement that the jury be given some vehicle to

consider Penry’s retardation is pure Lockett; it relates to

what evidence must be considered. The contention that

the jury must be instructed to consider every mitigating

aspect of the evidence would be a new rule relating “to

how it must consider the mitigating evidence.” Parks goes

on to explicitly discuss Penry and give it the narrower

interpretation. Parks notes that Penry’s claim was, in

part, that the jury was precluded from “giving any mitigat-

ing effect” to his evidence, id., at 491 (emphasis added).

and only that portion of the claim did not require cre-

ation of a new rule. “Here, by contrast, there is no

contention that the State altogether prevented Parks’ jury

from considering . . . all of the mitigating evidence

Ibid. (emphasis added).

Finally, Parks explicitly affirms that Penry did not

overrule Jurek. “The Penry Court's conclusion .. . must

be understood in terms of the Court's ruling in Jurek, and its

application in later cases.” /d., at 492 (emphasis added)

Thus, to the extent that broad language in Penry might be

construed to overrule Jurek, that language was disap-

proved, and Jurek was reaffirmed, in Parks.

Graham v. Collins, supra, follows directly from Parks

The narrow reading of Penry and the statement that Penry

did not overrule Jurek necessarily lead to the conclusion

that a habeas petitioner who does seek to overrule Jureé

seeks the creation of a new rule.

Graham claimed that his evidence was not given “ful!

mitigating effect” under the Texas special issues, 122

L. Ed. 2d, at 294, 113 S. Ct., at 917 (Souter, J., dissent.

ing), yet his evidence was not a different kind from

Jurek’s, see id., 122 L. Ed. 2d, at 275, 113 S. Ct, at 92

(majority). To the extent that Penry was based on the

notion that Jurek was limited to the “facial validity” of the

Texas statute, see Penry, supra, 492 U.S. at 315, that

14

notion is repudiated in Graham. Graham reads Jurek as

holding that the Texas system was constitutional as

applied to Jurek on the facts of his case, 122 L. Ed. 2d,

at 275, 113 S. Ct., at 902, which is indeed what the Jurek

lead opinion says, see ante, at 7.

To recap, then, the present state of the body of

precedent is this. Jurek held that the Texas system was

constitutional on its face and as applied to Jurek. The

Lockett line of cases holds that the sentencer may not be

altogether prevented from considering any item of

mitigating evidence. Penry holds that additional instruc-

tion beyond the Texas special issues may be required in

an unusual case, where the defendant has powerful

mitigating evidence that cannot be given any consideration

under the special issues.

To the extent Penry may be read to go beyond what

the jury considers into how the jury considers it, that

interpretation is repudiated by Parks. To the extent Penry

may be read as holding that Texas juries must give “full

effect” as opposed to “some effect” to mitigating evi-

dence, that interpretation is repudiated by Graham. ‘To

the extent that Penry may be based on the notion that

Jurek did not consider constitutionality of the statute as

applied to the facts of Jurek’s case, that notion is repudi-

ated by Graham. To the extent that Penry may be

interpreted to overrule Jurek, that interpretation is refuted

by Parks, Graham, and Penry itself.

Graham is now precedent that the extension of Penry

which Graham sought and which Johnson now seeks

requires an overruling of Jurek. See Graham, supra, 122

L. Ed. 2d, at 275, 113 S. Ct., at 902 (“wholesale abandon-

ment of Jurek”). The sole remaining question is whether

Jurek should, indeed, be overruled. For the reasons set

forth in Planned Parenthood v. Casey, 120 L. Ed. 2d 674,

112 S. Ct. 2791 (1992), amicus submits that Jurek should

not be overruled.

“ - mmm

15

III. For the reasons stated in Casey,

Jurek should not be overruled.

In Planned Parenthood v. Casey, 120 L. Ed. 2d 674,

704, 112 S. Ct. 2791, 2812 (1992), this Court identified

four factors governing the decision to overrule a prece-

dent in “normal stare decisis analysis” and additional

considerations which apply to “national controversies.”

Amicus submits that both types of considerations apply to

Jurek and that all applicable factors weigh against its

overruling.

A. Normal Stare Decisis Analysis.

In deciding whether to overrule a precedent, this

Court

“may ask whether the rule has proved to be intolera-

ble simply in defying practical workability [citation];

whether the rule is subject to a kind of reliance that

would lend a special hardship to the consequences of

overruling and add inequity to the cost of repudiation

[citation]; whether related principles of law have so far

developed as to have left the old rule no more than a

remnant of abandoned doctrine [citation]; or whether

facts have so changed or come to be seen so different-

ly, as to have robbed the old rule of significant appli-

cation or justification [citation].” /d., 120 L. Ed. 2d,

at 700, 112 S. Ct., at 2808-2809.

1. Workability.

There is nothing unworkable about the Jurek rule.

That case approved the practice of instructing juries in

the terms of the statute. The Penry exception to Jurek

does introduce some additional complication, since it

requires a case by case analysis of the mitigating evidence

to determine whether the evidence in a given case could

not be given any effect. This difficulty is no greater than

the difficulty of the rule Johnson proposes, which would

require case by case analysis of the type in Justice

16

O’Connor’s opinion in Franklin v. Lynaugh, 487 U. S. 164,

185-187 (1988). If practical workability were the driving

force for overruling, it would point toward overruling

Penry, not Jurek.

2. Reliance.

The reliance interest in this case is monumental.

Enforcement of the criminal law is the single most

important function of state government. See /Jllinois v.

Gates, 462 U. S. 213, 237 (1983). Capital cases are, by

their nature, the most important cases in that function.

The state must devote enormous resources, both to

investigate and litigate its own case and to provide

counsel and experts for the defendant. See Powell v.

Alabama, 287 U. S. 45 (1932); Ake v. Oklahoma, 470 U. S.

68 (1985). In 1989, when Penry was decided, there were

around 300 prisoners under sentence of death in Texas,

U. S. Bureau of Justice Statistics, Capital Punishment

1989, at 6 (1990), all of them tried and sentenced in

reliance on this Court’s holding in Jurek that the Texas

system was constitutional.

Payne v. Tennessee, 115 L. Ed. 2d 720, 737, 111 S. Ct.

2597, 2610 (1991) noted that reliance interests are

generally at a minimum in cases of procedure and

evidence. That is true for rules favoring the defendant.

Virtually no one decides to commit a crime based on

existing rules of procedure, and any such reliance would

not be legitimate.‘ Furthermore, because the prosecution

cannot appeal an acquittal, a defendant who successfully

invokes an existing rule at trial has nothing to fear from

a later reversal of that rule.

For the prosecution, the situation is quite different.

Defendants can appeal, and if an old rule is overturned,

4. A person may well rely on an existing rule of substantive law that his

conduct is legal. Such reliance is fully protected by the Due Process

Clause. See Marks v. United States, 430 U. S. 188, 191-192 (1977).

17

every pending appeal is decided under the new rule.

Griffith v. Kentucky, 479 U. S. 314, 328 (1987). Because

of their complexity, capital appeals may not become final

for many years after trial. The present case was tried

over six years ago. Pet. Brief 3. Since “virtually any

mitigating evidence is capable of being viewed as having

some bearing on the defendant’s ‘moral culpability’ apart

from its relevance to the particular concerns embodied in

the Texas special issues,” Graham v. Collins, 122

L. Ed. 2d 260, 275, 113 S. Ct. 892, 902 (1993) (emphasis

in original), accepting Johnson’s new rule would require

retrial of many years of cases. Such a massive expendi-

ture of scarce judicial resources would require an excep-

tionally compelling justification.

3. Development of the law.

The day after Penry was decided, the argument could

have been made that Jurek was nothing but an empty

shell. See Penry v. Lynaugh,-492 U.S. 302, 354-355

(1989) (Scalia, J., dissenting). If subsequent cases had

read Penry as Justice Scalia’s dissent read it, then it could

be said that Jurek was “no more than a remnant of

abandoned doctrine.” Casey, supra, 120 L. Ed. 2d, at 700,

112 S. Ct., at 2808.

However, as discussed in part II-C, ante, 12-14, Parks

and Graham have limited Penry and reaffirmed Jurek. If

any case in the line is a “remnant of abandoned doctrine,”

it is Penry, not Jurek.

4. Changed facts.

Defendant makes something of a “changed facts”

argument in his discussion of Hitchcock v. Dugger, 481

U. S. 393 (1987). He reads Hitchcock as being the

product of “experience” with the Florida system approved

in Proffitt and the result of observing that system “in

practice.” Pet. Brief 14-15 and n. 7. Defendant reads

Hitchcock as a factual discovery that some Florida

18

sentencers were not considering some mitigating circum-

stances, thereby justifying a departure from Proffitt. An

analogous argument would be that experience in Texas

indicates that some mitigating evidence, although relevant

to the second special issue, cannot be “fully considered”

under that issue.

The fallacy here is that experience has not shown

anything that was not obvious at the time of the earlier

decisions. The Court was well aware in 1976 that the

Florida system limited mitigation to “certain enumerated

mitigating circumstances.” Jurek v. Texas, 428 U. S. 262,

272 (1976). Similarly, it was well aware that the Texas

system permitted consideration of Jurek’s youth and other

mitigating evidence only to the extent that they bore on

future dangerousness. [bid.

Neither Proffitt nor Jurek was based on a factual belief

that the system under consideration permitted the sen-

tencer to consider every mitigating aspect of every mitigat-

ing fact the defendant might proffer. No rational person

could believe either system did on the record before the

Court in the actual cases. Both cases upheld the systems

involved because there was no constitutional requirement

for unlimited consideration of mitigation. The fact that

neither system allows such unlimited consideration is not

a “changed fact”; it is a fact that was known from the very

beginning.

The “factual underpinnings” of Jurek have not

changed. Consequently, “the court could not pretend to

be reexamining the prior law with any justification beyond

a present doctrinal disposition to come out differently

from the Court of [1976].” Casey, supra, 120 L. Ed. 2d,

at 706, 112 S. Ct., at 2813-2814.

B. National Controversies.

Capital punishment, like abortion, economic legisla-

tion, and segregation, is an issue of intense national

debate. Every presidential candidate declares his position

19

on the issue, and those who publicly oppose it are invari-

ably defeated. Support for the death penalty now runs

over four to one in favor. U.S. Bureau of Justice

Statistics, Sourcebook of Criminal Justice Statistics—1991,

at 211 (1992).° Special caution is needed in areas of such

magnitude.

1. Public confidence.

“There is, first, a point beyond which frequent overrul-

ing would overtax the country’s belief in the Court’s good

faith.” Casey, supra, 120 L. Ed. 2d, at 708, 112 S. Ct., at

2815. In the case of capital punishment, that point has

already been reached, not with outright, honest over-

rulings but instead with effective overrulings based on

flimsy or nonexistent distinctions.

In McGautha v. California, 402 U. S. 183 (1971), the

question of the constitutionality of unbridled sentencing

discretion was squarely before the Court. The ruling was

clear and unequivocal. “[W]e find it quite impossible to

say that committing to the untrammeled discretion of the

jury the power to pronounce life or death in capital cases

is offensive to anything in the Constitution.” J/d., at 207

(emphasis added). Yet only one year later, the precise

argument so clearly rejected in McGautha was accepted in

Furman v. Georgia, 408 U. S. 238 (1972), through the

disingenuous device of engrafting procedural require-

ments onto the previously purely substantive Cruel and

Unusual Punishment Clause. As discussed in part II-A,

ante, 8-10, this Court did a second about-face in the

Lockett line of cases, striking down the system it had |

expressly approved in Proffitt. See Lockett v. Ohio, 438

U. S. 586, 622 (1978) (White, J., dissenting in part)

(“about-face”); id., at 629 (Rehnquist, J., dissenting)

(“pillar to post”); Walton v. Arizona, 497 U. S. 639, 667-

5. This figure actually understates the support. Survey respondents are

asked about the penalty for murder generally, not the smaller subclass of

the worst murderers actually eligible for the penalty. /bid.

20

668 (1990) (Scalia, J., concurring in part). Two disapprov-

als of expressly approved systems are quite enough.

The entire edifice of “procedurally cruel and unusual

punishment” is built on the shakiest of foundations. If

the public is to accept these limitations as genuine, this

Court’s precedents must mean something. Approval of a

state’s sentencing system cannot have such a limited

meaning that the vast majority of defendants can success-

fully attack the statute as applied to their cases. Even the

“facial” challenge, which defendant claims Jurek was,

should have been successful if the system were unconstitu-

tional in the vast majority of its intended applications, cf.

United States v. Raines, 362 U. S. 17, 23 (1960), for if it

were the remaining few sentences would be “a capricious-

ly selected random handful,” see Furman, supra, 408

U. S., at 309-310 (Stewart, J., concurring).

Constitutionality of the system, at a rock bottom mini-

mum, must mean that the system approved is free of the

kind of systemic flaws that would invalidate the majority

of sentences rendered under it. If not, then instead of

being a watershed decision, Jurek was a pointless exercise

in futility. The country deserves better.

2. Promise of constancy.

Casey also recognizes this Court’s implied promise of

constancy to those who must implement its decisions.

Zigzag jurisprudence makes dedicated, conscientious

judges and lawyers look like buffoons. Prosecutors make

arguments and request instructions in reliance on this

Court’s approval of procedures. Competent defense

lawyers may decline to object or to appeal the issue,

concentrating their efforts on arguments likely to succeed.

See Smith v. Murray, 477 U. S. 527, 536 (1986). If the

defense does object, the trial court overrules the objection

in reliance on precedent. When the precedent is later

overruled or distinguished out of existence, the prosecutor

is accused of misconduct, the defense lawyer is accused of

21

incompetence, and the trial judge is accused of disregard-

ing the defendant's constitutional rights. See, e.g , ante, at

10 (Hitchcock).

Legislatures, also, rely on this Court’s precedents. In

1991, in reaction to Penry, the Texas Legislature acted to

remove the remaining guidance and give the jury what

amounts to unfettered, pre-Furman discretion in every

case of “capital murder.” See 3A Tex. Code Crim. Proc.

Ann., Art. 37.071(2)(e) (Vernon Supp. 1993). If such

additional instructions were constitutionally required, this

Court could have and should have said so in 1976. The

Legislature could then have amended the statute 15 years

earlier. When this Court affirmed Jurek’s sentence in a

case where no such instruction had been given, it implicit-

ly promised the people of Texas that no such instruction

was constitutionally required.

“The promise of constancy, once given, binds its

maker for as long as the power to stand by the deci-

sion survives and the understanding of the issue has

not changed so fundamentally as to render the com-

mitment obsolete. From the obligation of this promise

this Court cannot and should not assume any exemp-

tion when duty requires it to decide a case in confor-

mance with the Constitution. A willing breach of it

would be nothing less than a breach of faith, and no

Court that broke its faith with the people would

sensibly expect credit for principle in the decision by

which it did that.” Casey, 120 L. Ed. 2d, at 709, 112

S. Ct., at 2815-2816 (emphasis added).

Let there be no mistake. Johnson is asking this Court

for a massive breach of faith with the people of Texas.

He is asking this Court to hold that Jurek’s approval of

the Texas system only applies to rare cases, and that the

system previously upheld is now unconstitutional in the

vast majority of cases. See Pet. Brief 17. Such a mockery

of precedent is contrary to all of the reasons for stare

decisis.

22

Some Members of this Court may very well believe

that Jurek was wrongly decided as an initial matter. The

facts remain, however, that Jurek was decided in favor of

validity and that the people of Texas relied upon it.

Disagreement with the initial decision is not a sufficient

basis for overruling a precedent of this importance.

Casey, 120 L. Ed. 2d, at 706, 112 S. Ct., at 2814. If this

Court meant what it said in Casey, the essential holding

of Jurek must be upheld.

IV. Penry should remain limited to its

narrow interpretation.

As the preceding discussion indicates, many of the

reasons for not overruling Jurek v. Texas, 428 U. S. 262

(1976) would support overruling Penry v. Lynaugh, 492

U. S. 302 (1989). It has already been reduced by subse-

quent cases, and there are questions about its practical

application. Nonetheless, the contrary interests in stability

also count, and the damage for future Texas cases has

already been done. See Graham v. Collins, 122 L. Ed. 2d

260, 288, n. 9, 113 S. Ct. 892, 913, n. 9 (1993) (Thomas,

J., concurring).

Amicus therefore submits that the best way out of this

difficult situation is to declare a cease-fire in place

between Penry, as narrowly interpreted in Graham and

Parks, on the one hand, and the unmistakable holding of

Jurek itself, on the other. That is, in a case where the

defendant presented compelling mitigating evidence which

would universally be considered to substantially reduce his

culpability, but which offered the jurors no basis for

answering either of the special issues “no,” that defendant

is entitled to a new sentencing hearing. In cases such as

Jurek and Graham, where the evidence could be consid-

ered in returning a “no” answer, no additional instruction

is constitutionally required.

23

Application of this rule to the present case is straight-

forward. This case is indistinguishable from Jurek.

CONCLUSION

The judgment of the Texas Court of Criminal Appeals

should be affirmed.

April, 1993

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation